All Forum Posts by: Hubert Kim

An Unlawful Detainer action is what is more commonly referred to an the eviction process. It is a special court filing for a landlord to regain possession of a rental unit from a tenant. You are probably already familiar with it since it seems you have a couple numbers indicating estimated filing fees. It is usually not fun.

The eviction process starts with a Notice to Pay or Quit (different names in different places). This should not cost much to do properly. Mere notice may persuade the tenants to pay or vacate on time. I suggest starting with that and following up with filing an unlawful detainer if payment is not received. If your lease/city/state allows it, you may be able to deduct those fees from the security deposit.

If I understand correctly, the potential tenants were made aware of the potential expenses ($200 cancellation fee plus daily prorated rent, starting on their proposed lease start day, until a tenant is found) and signed documents to this effect. From a logical standpoint, your position is reasonable so far.

That said, CA does not have specific, accepted guidelines on holding deposits. Best practices are good documentation and to ensure any fees are "reasonable". Nolo.com states the following should be included in a holding deposit agreement:

• the amount of the holding deposit
• your name and that of the applicant
• the address of the rental property
• the dates you will hold the rental property vacant
• the term of the rental agreement or lease
• conditions for renting the applicant the available unit—for example, satisfactory references and credit history and full payment of first month’s rent and security deposit
• what happens to the holding deposit if the applicant signs the rental agreement or lease—usually, it will be applied to the first month’s rent, and
• amount of the holding deposit you will keep if the applicant doesn’t sign a rental agreement or lease—for example, an amount equal to the prorated daily rent for each day the rental unit was off the market plus a small charge to cover your inconvenience.

Regarding your $200 cancellation fee, I am not certain it would be considered "reasonable" because my understanding is the fee should be actual losses (loss of potential rent, additional marketing costs, etc.). Regarding your daily prorated rent, since that is an actual loss, you should be fine deducting that from the holding deposit (assuming your documentation is solid).

Hope that all makes sense.

I am not familiar with Texas, but your situation appears similar to laws in California. Unfortunately, you may not have any other option but to wait and go through the process. But give yourself at least a little credit on navigating an extremely difficult and stressful situation.

If you have not worked with an attorney thus far, it may be a good option. I don't know if you can even do cash for keys in your situation as your tenant is probably just trying to buy as much time as possible. I don't know what courts look like in TX, but in the Los Angeles area of CA, a tenant can in reality draw out the eviction process to as long as 8 months easily by various tactics (incorrectly filling out forms, using different addresses, initiating bankruptcy, lying, and so on). I hope your situation is resolved in the month. Keep us updated and good luck.

This may vary by city/state. In general, tenants are required to leave a rental unit in the same condition as it was in the beginning of tenancy. So technically, although you may be able to argue any holes in the walls is damage, it will depend on the size and number of holes. If they are "reasonable", it may be difficult to justify any charges for repair in court (worst-case scenario). If they are obviously "excessive" then it may be very easy to justify.

That said, after 3 years painting is generally no longer deducted from a security deposit. If the holes are not large, they should be relatively easily fixed when repainted.

From my understanding, a court judgement is a legal document stating that money is owed. With this document, there are options (though sometimes limited) in collecting that may include placing a lien on real property, placing a levy on a bank account and garnishing wages.

An account (in this case, a tenant) that has a balance due (bill from property damages) may be sent to a collections agency who may try to persuade it is the debtor's best interest to pay or settle the debt. They may report the debt to the credit bureaus which results in lowering the debtor's credit score. Before any statute of limitations runs out on the debt, they may try to take the debtor to court and get a court judgement.

Without knowing anything else about the specifics of the situation, I would refer to your lease. If your lease addresses this situation (holdover tenancy), then it will state what your options are. In a lot of leases, holdover tenancy will result in additional rent, sometimes at an increased percentage. If so, then you may decide to charge the tenant an additional day of rent and deduct it from the security deposit.

If your lease does not address holdover, then I suggest not deducting the additional day. In my opinion, if the tenant disagrees with the deduction and sues you, you may have to prove that the additional day of holdover caused specific losses. In other words, one day of rent is probably not worth a worst-case scenario of having to defend yourself in small claims court. Some may disagree, though.

Depending on the details within your lease and your city/state, you may be able to charge a higher rent for each day the tenant stays beyond the lease termination date. You may be able to deduct this amount from the security deposit.

When is she planning to leave? When does she normally pay rent?

The specific details would be very helpful to understand your brother-in-law's situation. Did the tenants show up to court? If so, did the judge address the issue of partial payments? If not, are the tenants aware of the coming sheriff eviction (did they receive the sheriff notice to vacate?).

I don't know laws governing Detroit, but in California, if partial payment is received by a landlord even after a 3 day notice to pay or quit, the tenant can use this as a defense in court. Unless there is specific written documentation that the tenant knew that the partial payment does not waive the landlord's rights to evict, then the unlawful detainer case may be dismissed. The landlord would then have to restart the entire process.

If this is not the case in Detroit, then your brother-in-law is fortunate.

If he hasn't yet, he will request a writ of possession from the court. Three days later, he will go back to court and pay the sheriff's fee for eviction. When available, the sheriff will post a notice to vacate (5 days after the posting date). Soon after, the sheriff will send notice of the time and date for your brother-in-law (or agent) to be present to change the locks. Again, this is CA - MI may be different.

It may be likely that the tenants will have personal property in the unit after they are physically removed by the sheriffs (they do not wait for tenants to pack and move). Handling personal property is potentially a whole different story with more challenges.

Keep up updated and good luck.

Carolyn,

Sorry things are not going smoothly so far. Hopefully, things will turn around. Although I agree with the sentiments from everyone above, if you are confident your attorney is competent, then consult with him/her on how best to go forward with your short and long-term interests in mind. Personally, I might take a very conservative approach due to the sensitive circumstances of the situation.